With Malice Toward Some: United States V. Kirby, Malicious Prosecution, and the Fourteenth Amendment

Abstract

In 1869, the Supreme Court treated United States v. Kirby as a simple case. In 1994, it treated Albright v. Oliver as a case divorced from history. Understanding the factual complexity of Kirby provides the historical framework missing from Albright and casts new light on the issue of whether the Fourteenth Amendment forbids malicious prosecution.

United States v. Kirby appeared straightforward. John W. Kirby was indicted for interferring with the United States mail by detaining a mail agent, Dr. Cyrus W. Farris, and a mail steamer. John Kirby's defense was simple. He was the sheriff of Gallatin County, Kentucky. The mail agent, Dr. Farris, had been indicted for murder twice by the grand jury of that county. Sheriff Kirby admitted that he had detained Dr. Farris solely to arrest him for those murders. He admitted that he had detained the mail steamer, but only for the length of time necessary to effectuate the arrest. Surely he should not be held criminally liable for simply doing his duty.

The Supreme Court agreed. In Language that would be quoted for more than a century, the Court held that "(g)eneral terms (of a statute) should be so limited in their application as not to lead injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character." Just as a law against jail break does not apply to a prisoner who flees to avoid a fire so a law against interfering with the passage of the mail should not apply to a sheriff who simply arrests a mail agent who has been indicted for murder. It seems a self-evidently correct result.

Yet, there is something inherently implausible about the facts of the case as presented in the Supreme Court's opinion like a law professor's hypothetical: useful to make an abstract point but nothing that would ever happen in the real world. What grand jury would indict a local sheriff for arresting a murder? What United States Attorney would prosecute such a case? There must be more to the story.

There is.

Based on previously unpublished archival materials and contemporaneous newspaper accounts, this article tells the story that was never presented to the Supreme Court in which people and events were not always what they seemed. Dr. Farris was a mail carrier, but he was also the provost marshall who had led the Union Army's fight against guerrillas in Gallatin County. John Kirby was the sheriff of that county, but he was also the vengeful, secessionist brother-in-law of a confederate guerilla who had been killed during Farris's guerrilla suppression efforts. Farris had been charged with "murders," but those "murders" were the killings of guerrillas by Union Soldiers. Sheriff Kirby was acting pursuant to an indictment that had been obtained from a "rebel grand jury" largely selected by the Sheriff himself. The seizure of Farris was an "arrest;" effectuated by a mob of more than 150 armed Confederate sympathizers who seemed more intent on Killing Farris than on bringing him to trial.

The story illuminates an important part of the background of the fourteenth amendment. Dr. Farris's indictment was an example of a pervasive problem that faced the Congress just before the enactment of that amendment: the frequent use of baseless prosecutions to punish and intimidate those who tried to enforce national policy after the war. By the time the Thirty-Ninth Congress proposed the Fourteenth Amendment, there had been more than three thousand such prosecutions in Kentucky alone. The Thirty-Ninth Congress was well aware of the problem of baseless prosecution of Union supporters, discussed it in detail, and enacted legislation to deal with it. The pervasiveness of such prosecutions sheds new light on an issue that had perplexed the Court's of Appeals and that sharply divided the Supreme Court in Albright v. Oliver: whether malicious prosecution constitutes a violation of the Fourteenth Amendment recognizable under 42 U.S.C § 1983?